M Y HUSBAND MIKE AND I WERE NEGOTIATING FOR A NEW TWO-STORY HOME IN LONG BEACH, CALIF. DURING AN INSPECTION, WE DISCOVERED A PUDDLE OF WATER ON THE GARAGE FLOOR BELOW THE SECOND- FLOOR DECK. BEFORE THE FINAL CLOSING, THE CONTRACTOR ASSURED US IN WRITING THAT HE HAD SINCE SEALED THE DECK AGAINST FURTHER LEAKS.
A few weeks after we moved in, however, a summer storm brought torrential rains. Water pooled on the deck, soaked through the garage ceiling and dribbled down the garage walls. We called the builder again and again, and sent him a stern letter, along with photos of the damage. “I’ll send someone over,” he kept saying.
But no one ever came. Before long, the garage ceiling buckled. We then got repair estimates from four other contractors, who told us the builder had used sub-standard construction on the deck. The final job—removing the old surface, installing a new one and repairing the damage—set us back $2,000.
Even worse than this expense, however, was the feeling that we’d been wronged. An arrogant, irresponsible builder had ripped us off. We could see that any legal action we brought would turn into a big, expensive battle. So, gloomily, we decided not to fight him.
Then a neighbor came up with a solution: “Sue him in small-claims court. You won’t even need a lawyer.”
Later that week, by filling out a simple form and paying a small filing fee, Mike and I joined the estimated four million Americans each year (1995) who seek justice by filing suit in the smallest court of our land. Cases involve everything: from dog bites, fender-benders and ill-fitting dentures to long-overdue rent.
“Small-claims court safeguards the rights of the average citizen,” says Judge Roderic Duncan, a former small-claims judge in Oakland, Calif. “If someone takes advantage of you, you can take him to small-claims court, and he can’t brush you off anymore.
UNLIKE HIGHER COURTS , SMALL-CLAIMS COURTS ARE LIMITED TO FINANCIAL DAMAGES BELOW A CERTAIN LEVEL, DEPENDING ON THE STATE OR LOCAL JURISDICTION.
The handling of cases is considerably more relaxed and, according to the National Center for State Courts, a case is typically resolved 51 days after a claim is filed, compared with 14 months for similar claims in higher courts.
Nearly three-quarters of small-claims litigants don’t hire a lawyer. (In about a dozen states, lawyers are not even allowed to present cases, except under special circumstances.)
THE MOST IMPORTANT BENEFIT OF ALL,
HOWEVER, CAN’T BE MEASURED.
“Something special happens when you present your case to a judge, says attorney Ralph Warner, author of Everybody’s Guide to Small-Claims Court. “ You’re standing on your own two feet, and if you have a legitimate grievance, you’ll win
your case. It’s how the law should work.”
STILL, PREPARATION IS ESSENTIAL.
Here are a few tips to help you win:
Learn the rules. The case that Mike and I filed fit the primary requirements for small-claims court: someone had wronged us, and we had suffered financial damages.
We were bringing the case to court within four years, the time limit in California for written contracts. Our loss also fell within the monetary limit for our local court: litigants are allowed to file as many claims as they want per year with a limit of $2,500 each—or two claims per year with a limit of $5,000 each.
Most states restrict claims to about $2,000 . In recent years (1995) Texas, Utah and several other states have raised claim limits to $5,000. Minnesota’s is $7,500, and Delaware’s is $15,000, but Alabama’s is only $1,500.
To check your local court’s guide-lines, first call your county or city courthouse and ask for the clerk who handles small-claims cases. Although court clerks are not allowed to give legal advice, they can help you with forms and procedures.
If you are uncertain whether you have a case or the legal action is worth your time, you might consider consulting a lawyer before bringing your suit. In some cities, lawyers volunteer as part of community -outreach programs, staffing free telephone -advice lines. In other locales legal-aid offices guide low-income and senior citizens through the filing process.
Moreover, some local and state bar associations sponsor referral services through which you are matched with an experienced lawyer for a half-hour consultation. The fee usually runs less than $30.
Before you file, try to resolve the issue. Anyone suing in small-claims
court must prove that damages were sought and that the defendant refused to pay. Mike and I had all our correspondence to back up this part of our suit. Along with our letters requesting the initial repair, we had other letters asking the builder to pay for the repair we had been forced to make . The last letter we sent was a typical “demand letter,” a short note stating the nature of the dispute and the exact expenses we expected him to pay.
The demand letter should be simple and courteous. Describe the case just as you would present it to the judge, and make it clear you will seek Justice in small-claims court if the matter is not resolved. The letter shows the judge that you tried to work things out and that you dealt in good faith but got nowhere.
Also, sending the letter via certified mail gives you proof that the defendant received it, as well as confirms his address when it is time to serve court papers.
If your demand letter doesn’t succeed in heading off a formal small-claims suit, there’s one other key avenue you should consider: mediation . Many governmental or professional organizations wield influence over member businesses, and they can often help resolve disagreements. Most local Better Business Bureaus, (BBB) for example, provide free mediation services for certain consumer problems that involve their members.
You can even try your own mediation by offering to settle for a lesser amount prior to a court hearing . If your adversary refuses, you can still sue for the full amount in court. “Always offer to compromise and settle before you go to court,” advises Steven Marzullo, a Las Vegas attorney. “If the judge feels you’ve been fair and flexible, he’ll reward you for that.”
Be organized. Before our trial, I made copies of all our documents and photos, then separated them into labeled folders so everything was handy when the judge asked questions. “The most serious mistake plaintiffs make is not bringing proper documents and evidence to court,” says Las Vegas Judge Nancy Oesterle. “Plaintiffs even forget to bring their own witnesses to court.
To learn what to expect, sit in on a few actual cases, suggests Judge James G. Bodiford, a former small-claims judge in Georgia’s Cobb County. “Parties often come in nervous, not knowing procedures and rules,” he says. “So watch some proceedings and listen to what the judge says.”
Make copies of contracts, warranties, canceled checks, receipts and letters . (If your claim goes back many months, a judge may allow you to add in interest.) Subpoena witnesses or, if the court allows it, bring written testimony . If you were in a car accident, sketch a diagram of what happened, and check police reports.
Copies of laws pertaining to your case may also bolster your position—along with any official standards or guidelines for your claim. Librarians will direct you to reference books listing car values, standard repair costs and prices for common services and products.
Keep your presentation short and simple. Small-claims court moves at a quick pace. When both parties show up, the average case can take 30 or 40 minutes. When the defendant doesn’t show up, as happens 36 percent of the time, it’s a fraction of that. Judges have no time or patience for long-winded Perry Mason types.
Whatever you do, don’t make unfounded accusations or embellish the evidence. “Judges have a sixth sense as to who’s telling the truth,” says Judge Bodiford. “The worst thing you can do is to exaggerate the story . If you have a cause of
action, you’ll win you r case No judge expects litigants to be F. Lee Bailey.”
In a courtroom in Yonkers, N.Y., two young university students learned the value of a well-prepared presentation. The students had enrolled in a $1655 computer programming class that the university adviser had assured them was appropriate for beginners. Yet when the two students went to class, they quickly discovered that the course was geared toward advanced students.
Frustrated, the two quit the course and demanded a refund . The university refused, so the students filed a small-claims action. In court, they calmly explained what they had expected from the course, and compared this with what they had then received. They produced the course catalogue and recounted the university adviser’s assurances that the class was designed for beginners.
They also presented complaint letters that they had sent to school administrators.
The university, employing an experienced lawyer, introduced various legal motions —but got nowhere. The judge ruled in favor of the students, ordering a full tuition refund for each.
Be sure you can collect if you win. Mike and I were reasonably certain our builder had assets we could seize if he refused to pay a judgment: he drove an expensive sports car and lived in a fancy beach house.
That was important, because one study by the National Center for State Courts shows that as many as one-third of victorious common-claims plaintifh fhiled to collect on judgments. “Winning a judgment is only half the battle,” says Atlanta attorney and part-time magistrate judge Gary E . Jackson. “Don’t waste your time suing if the defendant can’t pay.”
If your adversary is a business or a taxpaying citizen, the law provides plenty of options. If you know where the person works, some states allow you to garnish a portion of his paycheck or hank account. You can also seize certain types of property . If you are suing an incorporated business, make sure there are visible assets—office furniture, vehicles, tools of the trade—that your state allows you to seize to recover a judgment. As a last resort, there is always a coflection agency, which takes a third to half of whatever it collects.
When the day had arrived, Mike and I looked around the courtroom. Our adversary, like half the defendants that day, had not shown up. Even so, the judge listened to our brief summary, reviewed our documents and asked questions about the repair. The whole process took only a few minutes . Then the judge handed down his decision. We had won! Mike and I left the courthouse in high spirits. But the best moment wasn’t until several days later when the doorbell rang and a messenger handed me a check . Today, more than two years after that moment, the memory of its sweet justice still makes me smile.
READER’S DIGEST Magazne
October 1995. (Pgs.45-51)
Church of the Science of God
La Jolla, California 92038-3131
© Church of the Science of GOD, 1993